Legal test cases

This is a challenge to the policy of the Secretary of State for Work and Pensions in relation to MJ, a claimant in receipt of the carer element and transitional SDP element, to erode the whole of her transitional SDP element when she was found to have limited capability for work and work related activity. The UT allowed the SSWP’s appeal and re-made the FTT decision in MJ’s favour, finding that she had been unlawfully discriminated against.

This case concerned entitlement to widowed parent’s allowance (WPA) where the appellant and her partner had undergone a religious ceremony some years prior to his death and considered themselves to be, and held themselves out as being, legally married but were not in fact married under English law. The First-tier Tribunal found that the appellant had no entitlement to WPA as she did not meet the marriage requirement, and permission to appeal to the Upper Tribunal was refused, first by the FtT and then, on renewal, by the UT itself. Following a successful Cart style judicial review of the decision not to allow permission to appeal, the case was remitted to the UT for a decision on the WPA entitlement. The case was heard in the UT before a three judge panel on 13/02/20 and, on 26/05/20, the UT dismissed the appeal.

On 7 February 2020, the High Court handed down judgment in this case. It was held that the requirement under the Pensions Act 2014, in conjunction with the Bereavement Support Payment Regulations 2017, to be married or in a civil partnership in order to claim higher rate bereavement support payment (BSP) was not compatible with the European Convention on Human Rights. The SSWP did not appeal that judgment. The Bereavement Benefits (Remedial) Order 2022 came into effect on 9th February 2023 and extends eligibility for bereavement support payment and widowed parent's allowance to cohabiting partners with children.

The Upper Tribunal in this case gives guidance on how HMRC should calculate the earnings in a period of a term time worker and advises that this should not be done by looking at the wages they receive in a period but rather by looking at the wages they expect to receive for work done in a period. This should mean more term time workers on low incomes who are paid a monthly salary should now qualify for 30 hours free childcare.

In August 2018, the Supreme Court handed down its judgment that denying bereavement benefits to unmarried, cohabiting partners with children is incompatible with human rights law. Separately, CPAG is representing a Muslim woman with two young children who was also denied WPA following the sudden death of her partner with whom she had been through an Islamic marriage ceremony and believed herself to be lawfully married.